The raid on President Trump’s lawyer dramatically demonstrates the need for new legislation to assure that no FBI agents or U.S. attorneys ever get to read privileged communications between a lawyer and a client, a doctor and patient, a priest and penitent, or a husband and wife. Under current law, confidential material is read or listened to by a taint team comprised of FBI agents and prosecutors. The taint team then sends over to prosecutors all non-privileged material. But a number of FBI agents and prosecutors have already read and listened to the privileged material. They must be trusted not to leak it or misuse it in any way. Even if they don’t, the very fact that government agents have been given access to the most confidential and sacred materials should trouble every American.

There may be no perfect solution to this dilemma. Because the government does have the right to seize material that is not privileged, and such material may be comingled with privileged material.

There is a better and safer way to deal with this issue than the current approach of using prosecutors and FBI agents to do the sifting. A law should be enacted under which anytime the government is seeking to search an office or home that may contain confidential and privileged information, the search team must be accompanied by a judicial officer – a judge, a magistrate or someone appointed to fulfill that function.

That judicial officer should be the only one ever to read material that is eventually deemed to be confidential. A judge can be trusted not to leak far better than FBI agents or prosecutors. And if a judge were to leak, it would be easy to identify the source of the unlawful disclosure, since the single judge would be the only one to have access to the confidential material.

This procedure might be somewhat more cumbersome and expensive than the current "taint team" approach, but it would provide much better safeguards to the fundamental rights that we as Americans possess. The taint team could be retained in the context for which it was originally developed: to prevent potential violations of the Fifth Amendment by the use of immunized self-criminating testimony. Taint teams should never be used in the context of the Fourth or Sixth Amendment, because the privacy and confidentiality at stake there is very different than those at stake under the Fifth Amendment. The Fifth Amendment merely prohibits the use of illegally obtained self-incriminatory information at the defendant’s criminal trial. The Fourth Amendment prohibits unlawful intrusions into the privacy of any American, and the Sixth Amendment implicitly prohibits violations of the lawyer/client privilege. Such violations occur the moment private or confidential information is viewed by government agents, regardless whether it is ultimately used in a criminal trial.

When I proposed this new law on CNN, Jeffrey Toobin responded that lawyers, doctors, penitents and spouses are not above the law, and if there is probable cause to believe they may have committed a crime, it should be permissible to search their records without the direct supervision of a judge. But with due respect to my former student, that answer misses the point. The focus of my proposed law is not on the privacy rights of guilty lawyers, doctors, priests and spouses. Its focus is on the privacy and confidentiality rights of their innocent clients, patients, penitents and spouses. The proposed law is intended to protect the rights of these innocent bystanders. The legitimate confidentiality right of innocent people must be given priority over any inconvenience that might be caused by requiring a judge to be the one to filter out protected communications.

My proposed law would not prevent the government from seizing incriminating evidence from guilty lawyers, doctors, penitents or spouses, so long as the evidence was not covered by a legitimate privilege. It would put prosecutors in the same position they are in today: they would not be able to use information that was ultimately deemed to be privileged. But it would protect the innocent clients, patients, penitents, and spouses from having their private and confidential information reviewed by FBI agents and prosecutors who might well leak the information or misuse it in other ways.

Congress should seriously consider enacting such a law, not to help Donald Trump, but to protect the constitutional rights of all Americans whose private and confidential communications are now reviewed by taint teams comprised of FBI agents and prosecutors. All Americans should support this reasonable protection.

Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown

Originally posted by Fredward:What good would a new law do? These asshats are violating the law left and right. The law means nothing to them other than as a means to power over others.

I too generally question the need when new laws are called for. My objection in those cases usually revolves around there already being laws on the books which, if enforced, would largely address the problem. In this instance, the problem seems to be one of both process as well as the fact that in practice, at least up until this point, the law was on the books but seldom utilized, especially on this scale.

Given the non-stop leaking which has become commonplace over the years and the fact that materials once read cannot be unread, it may make sense to insert a person who would theoretically be more unbiased and who also would ostensibly be held to a higher standard into the equation to determine what is privileged and what would rightly fall within the intent of the law with regard to privilege and privacy.

JAllen, the idea of non-privileged information between an attorney and client, what's the difference and how is it determined if it's non-privileged versus privileged?

"It did not really matter what we expected from life, but rather what life expected from us. We needed to stop asking about the meaning of life, and instead to think of ourselves as those who were being questioned by life – daily and hourly. Our answer must consist not in talk and meditation, but in right action and in right conduct. Life ultimately means taking the responsibility to find the right answer to its problems and to fulfill the tasks which it constantly sets for each individual." Viktor Frankl, Man's Search for Meaning, 1946.

Originally posted by Rey HRH:JAllen, the idea of non-privileged information between an attorney and client, what's the difference and how is it determined if it's non-privileged versus privileged?

There are entire books devoted to these questions.

Generally, communications between a client and his/her attorney are privileged from being disclosed. The privilege is the clients and the attorney is obliged to refuse to disclose such comunications at every peril to himself. The communications must be made in confidence, and for the purpose of legal advice. There are several exceptions, where the privilege will not be recognized, a conspiracy to commit a crime, communications about common business having nothing to to with legal advice, etc. You can't have an attorney in your partnership and claim that all the discussions correspondence between partners are privileged, etc.

For those only in private practice, these situations come up more often. A house counsel, part owner of a business will have very few instances.

Clients need to tell you what really happened, what was really said, and must be confident that you the attorney cannot be made to reveal those matters.

When they raid your office, you do not want the government reading your papers, e-mails, memos, correspondence even if they cannot ise the information in court. No wink-wink, nod-nod between guys on the prosecution team with the taint squad either.

The idea of having a judge review all of it to filter out privileged material is good, but impractical. It would take weeks to review all the materials in some lawyers files, and who knows who all’s secrets might be discovered? If, for example, this FISA judge friend of Strzok turns out to be rogue somehow, and I am not suggesting he was, that will be the weak spot.

Judges need to be trusted and trustworthy.

Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown

But a number of FBI agents and prosecutors have already read and listened to the privileged material. They must be trusted not to leak it or misuse it in any way.

There was a time when I could read something like this and not laugh out loud, but that ship has sailed.

I am not sure we need a new law - we already have an Amendment and that's not preventing this.

What we need is judges that will throw this stuff out, and the ability to go after individuals in the government personally if they do nonsense like this. I don't care if the agency has to pay a fine and the perp/agent gets a reprimand - what deterrence is there in that?

How did they get a judge to issue a subpoena to raid Cohen's office in the first damn place? I was surprised a court issued one - taint team be damned. Of course Cohen's office is full of privileged information.

The issuing court should have been a lot more careful to ensure there was non-privileged material that was a legitimate target in the first place. This should not be a case of "grab everything and we'll sort it out later."

The fish is mute, expressionless. The fish doesn't think because the fish knows everything.

Originally posted by Aglifter:Especially given they were looking at things completely unrelated to the Russian investigations...

I do not see why the profession has not expressed more concern over this.

As I understand it, the search warrant was not a Mueller Special Counsel project but one of the US Attorney for the Southern District of New York. No need for subject matter restrictions. They are enforcing federal criminal laws in the district of all kinds.

Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown

Originally posted by jhe888:How did they get a judge to issue a subpoena to raid Cohen's office in the first damn place? I was surprised a court issued one - taint team be damned. Of course Cohen's office is full of privileged information.

The issuing court should have been a lot more careful to ensure there was non-privileged material that was a legitimate target in the first place. This should not be a case of "grab everything and we'll sort it out later."

That must have been one hell of a fascinating affidavit.

Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown

I ain't telling a lawyer shit ever. If I can't trust the attorney/client privilege, why would I risk it?

Let's say I murdered my wife, and I tell the lawyer, "look I did it, how can we minimize my jail sentence?" What stops the prosecuting attorney from kicking in the doors of my lawyer and taking his notes about our conversation? What about Bob, my neighbor who also uses the same lawyer? Why can the government take Bob's files and what if the taint team hates Bob for some reason and decides to secretly pass Bob's dirty little secrets to CNN?

Originally posted by TAllen01:This is actually not that crazy, and the great majority of us lawyers are well aware of the crime fraud exception to the privilege. That's why the great majority is not making a big deal out of this.

You can't ask your lawyer how to help you commit a crime. Well, you can, but that conversation is not privileged. It is Law 101 for first years.

Remember, he was not giving legal advice in 7 out of 10 cases. He was there not acting as a lawyer; he was just acting as a fixer, so the conversations are not privileged.

Why is the judge ordering his client list be made public?

Is it fraud for someone to have an affair with a consenting adult and then pay them to have a non disclosure agreement?

<Serious questions, I haven't seen these questions asked or answered in any of the coverage>

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” - John Adams